Nestlé lose the battle to protect their “four finger” trademark – do you need to protect your brand?

The Court of Appeal ruled on 17 May 2017 that the four-finger shape KitKat bar cannot be trademarked.

Nestlé claimed the shape of the bar was “so unique” that it should be protected by law. However, the judges were not convinced. In September 2015, Nestlé failed to persuade European judges who said that the company had to demonstrate the public relied on the shape alone to identify the snack. Since KitKat has a strong brand name, with a popular trademarked slogan “Have a Break”, it was found the public did not rely on the shape alone.

It is thought that the ruling could lead to copycat version of the bars.

Do you need to protect your brand with a trademark?

1. Do your customers or clients rely on a certain aspect of the brand in order to identify your product or services?

2. Is there a risk that your competitors would commercially exploit aspects of your brand?

3. Does another party have rights over a similar brand? Would they dispute your attempt to register the trademark?

Depending on the answers to the above questions, it may be worth you considering registering your brand in some way.